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Monday, November 05, 2007

Do Texts Speak for Themselves?

First of all, I would like to thank Dan for inviting me to blog with the Prawfs community. This is my first foray into the blogosphere, so I am particularly excited to be joining the conversation.

I recently gave a lecture to students about last term’s Supreme Court opinion in Scott v. Harris and was troubled (again) by what seems to me a puzzling approach to interpretive method taken by the majority opinion. As you will recall, Harris is a case that considered whether it was reasonable for a police officer to ram a motorist clocked for speeding and who refused to pull over. The Court, with Justice Scalia writing for the majority, appended a video of the car chase and eventual crash to its opinion. This fact in itself makes this case particularly noteworthy as the first occasion in which a video has been included with an opinion. Justice Scalia writes in a footnote that “we are happy to allow the videotape to speak for itself,” and in the text that “the videotape tells quite a different story” from the one told by the lower courts and by Justice Stevens in dissent. Shortly thereafter, he writes “what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort.”

Here’s my question: Is it reasonable to claim that a “text speaks for itself” after all we have learned about interpretation not only in the humanities, but also in the natural and social sciences? If a community of scholars – even if they are scholars in the humanities focused primarily on normative inquiry – agrees that texts are by their very nature the kinds of things that require interpretation, is claiming that a particular text “speaks for itself” like claiming that experimentation in the sciences is unnecessary? Why would it seem acceptable to ignore largely settled methodological questions employed by, well, (nearly) everyone in academia? Is it because questions about interpretation arise mostly in the humanities? If so, why would the methods in the humanities warrant so little regard? Is it because humanistic inquiry seemingly can be done by anyone sitting in an armchair?

I thought it was rather well settled that texts don’t “tell stories” on their own, but that they require exegesis and interpretation. I can imagine how much easier teaching would be if I could simply say to students, “I’m happy to allow Marbury to speak for itself.” To be fair, Justice Scalia does provide some interpretation of what “we see” on the video, just before analogizing it to Hollywood. But the interpretation takes the form of a description of what he purports to see happening on the video, as if merely directing our attention to the video would then allow it to speak for itself. This would be like directing students’ attention to particular passages in Marbury and then claiming that if they read these passages, the case would speak for itself. Moreover, the analogy to Hollywood is an oblique recognition that the video does not speak for itself. The fact that we must call to mind countless Hollywood car chase scenes (placing it within a specific movie genre) in order to understand what we see in the video is hardly an instance of the text speaking for itself. And if it does, approximately three-fourths of my students disagree with what Justice Scalia sees in the video. The existence of reasoned disagreement is the best indication that texts do not in fact speak for themselves.

We may disagree on interpretive methodology – and Justice Scalia is no stranger to debates over method in constitutional interpretation – but I would have thought there is no disagreement on the necessity of interpretation. Am I wrong? Do texts speak for themselves?

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In a path-breaking decision, the U.S. Supreme Court posted on its website a video along with text of its opinion in Scott v. Harris. Common sense is essentially multimodal. By including video along with its opinion, the Court provided a decision reco... [Read More]

Comments

Tommy -- You have properly interpreted the meaning of my sarcasm, by which I meant no offense.

My point was not necessarily that your "speculative metaphysics" was wrong, but that it is not a persuasive basis for rejecting the phrase "the text speaks for itself" as a general matter. Since, as you admit, not every text "requires a further written interpretation," the phrase "the text speaks for itself" seems quite serviceable to indicate situations where, in the speaker's view, a referenced text does not require further written interpretation. One may disagree with the speaker and argue that, in the particular case, the referenced text does not support the speaker's point as clearly as the speaker thinks. I am not sure if that is the case in Scott, having not seen the video. But a general criticism of the phrase seems out of order.

Posted by: AF | Nov 6, 2007 10:25:06 AM

Clearly, my original post speaks for itself. But what does it say?

Andy seems to think it says something susceptible to a regress argument, and thus says something absurd. Moreover, I entered the realm of speculative metaphysics. This may be the meaning behind AF’s sarcasm, but s/he may need to articulate further. That argument seems to go something like this: If no text speaks for itself, then every text will require a further interpretive text to say what it means and so on, all the way down. I think the regress argument does not apply here.

To say that no text speaks for itself does not mean that every text requires a further written interpretation. Depending on our purposes and the background practices to which the text applies we might understand a text without the need for further articulation (either through conversation or writing). But that does not mean that that understanding was not itself interpretive in light of conversational and semantic conventions, context, etc. And that does not mean that there is not always the open possibility of misfire requiring further articulation. A Supreme Court opinion is necessarily a reflective, interpretive practice requiring articulation of facts, reasons, and arguments. What is particularly jolting is to see in that context a claim that a text speaks for itself. Clearly it does not, or at least I’m with Justice Stevens, wondering what the video says to the others. John Marshall is right to place the opinion’s comment that the “video speaks for itself” in the context of the role the video plays in the case. But, as I indicated in prior posts, even playing a limited role (though the decisive one in the case), the video precisely does not, nor cannot, speak for itself, and Justice Scalia’s references to Hollywood, etc. suggest why.

In the context of a blog post aimed at an audience of persons of some legal academic interest, I would have thought what I wrote in my original post spoke for itself. Perhaps I should append the original post again, since as the Supreme Court's use of the video suggests, it is clear that repetition of the text is all that is required. It speaks for itself.

Posted by: Tommy | Nov 6, 2007 9:08:27 AM

Two points:
1. "The document speaks for itself" is a common (and almost automatic) objection made in deposition to preserve the record. Why? Because the witness's answer is almost always at some variance with the text (or the objector fears it will be). I have never had a litigation centered around a text where the meaning of the plain words were not in dispute (if there were undisputed, we probably wouldn't have had litigation!)

2. For the same reason, I think it was a mistake to append the video to the Scott v. Harris opinion. While I agree with the decision and the analysis, upon looking at the video I thought I would see a "Grand Theft Auto" style chase, with people running out of the way, driving on sidewalks, etc. Instead, it was a fast car chase that was difficult to gauge, in part because the police pursuit was very good, so that it just looked like the camera was following a car at high speed. Ironically, the chase would have looked more scary if the police driver had not been as good (THAT is what we see in Hollywood). As a result, I think that the court's statement of facts about the chase would have been more than sufficient and more persuasive than actually seeing the video.

I think you and I may be talking past each other. I really don't have much of a basis to evaluate the merits of Scott v. Harris, being only vaguely familiar with the facts/law and never having viewed the video. Thus, your arguments and concerns regarding that case (which may very well be correct) are just flying past me. Thus, you say that "we are . . . talking about a judicial decision handed down by the highest court," but I sure as heck I am not.

Thus, I hope that it is clear that I am not arguing with your interpretation of that case (again, I am not familiar with the case and will not opine). Rather, my concern is only with Tommy's somewhat alarming suggestion that a video cannot "speak for itself," in the sense that it will convey a message quite clearly for all practical purposes . That is all. Whether the Scott v. Harris video is one of those, I do not know, but I completely disagree with the notion that "texts have no meaning unless you look at other texts," and, again, find that approach absurd.

i appreciate your concern. and no, as i think i made clear in my post, i'm quite well aware that people use the "x speaks for itself" persuasive strategy all the time, and that this strategy is used to say that the issue is entirely clear, beyond debate, doesn't require discussion, etc.

my point, though, was that we are not talking about an interpersonal interaction in which i can always respond to your attempt to raise something beyond debate by debating it (by showing that it doesn't speak for itself, in some way, forcing you to revise your claim, etc.). we are, i believe, talking about a judicial decision handed down by the highest court we have in which the justices decided that certain information should not be subject to the interpretation of a jury because no reasonable person could possibly interpret it in any way other than the way the majority did. And this, DESPITE the fact that Justice Stevens DID interpret it differently (or at least argued that it could reasonably be interpreted differently).

So i'm not entirely clear if this would count as "metaphysical" exegesis, or what you mean by that term, but it is an instance in which it seems that exegesis IS required, while the court is claiming that it isn't. iow, my concern here is not focused on the content of the majority's finding, nor with the fact that people use such rhetorical strategies all the time more or less effectively, but with the implications that this reasoning has for judicial findings at the highest level (including the precedent for future video-related findings). but perhaps i am just unable to accept the idea that the my redskins aren't that good.

Posted by: John | Nov 5, 2007 11:09:57 PM

Tommy Crocker,

I think Scalia's comment makes more sense when you consider that it is in light of rebutting specific claims that had been made. It is not necessarily saying that "the video speaks for itself, thus the entire case is clear," but rather "the video speaks for itself, thus such and such specific factual claim cannot be true."

Therefore, when you write that "[e]ven if the video was exceedingly clear, the tape itself cannot make the factual point necessary to resolving the case" that is clearly correct. But was the original invocation of the term at hand even meant to resolve the case?

Posted by: John Marshall | Nov 5, 2007 10:31:10 PM

Tommy,

How is it that it's inappropriate to say that a text speaks for itself, but that it's appropriate and necessary to use a text to speak for another text? That second text can't speak for itself, after all. (I think this is the point raised by Chris and AF.)

I agree with Orin that there is an "overstatement inherent in the claim 'that texts don't 'tell stories' on their own, but that they require exegesis and interpretation.'" Texts can be sufficiently clear that for practical purposes, we need not engage in metaphysical analysis. (Insofar as impractical purposes are concerned, I'll leave those ruminations for those in the ivory tower.)

Ultimately, it's absurd to say that texts can't speak for themselves, but other texts can.

John:

You wrote -- "Hence, I would be claiming that the video evidence is NOT unequivocal (and maybe that it shows only that the Pats were better than the Redskins ON THAT DAY)."

I'll play along. Suppose I say: "The Pats were better than the Skins on October 28. The video speaks for itself."

Are you still going to demand that the 52-7 score is not sufficiently clear, and would you agree with Tommy that the football tape requires some metaphysical exegesis to interpret? When someone tells you that something "speaks for itself," does your head just explode? Are you unable to figure what what the text says?

That there are “really clear cases,” as Orin suggests, or that “in light of widely shared interpretive conventions, the meaning of the text is clear” as Chris suggests, does not warrant a claim that a “text speaks for itself.” Just because we might readily agree on the meaning of a text (a “clear” case) does not entail that somehow the text spoke for itself independent of context and framing, semantic conventions, or narrative motifs. In this case, there are many facts necessary to making the meaning of the video clear that are not contained in the video itself (e.g., where the chase occurred, why it occurred, who the participants are, when the video begins, etc.) that go to the context and framing of the video. To understand the fact that what is depicted in the video represents something particularly dangerous, the Court has to reference Hollywood chase scenes. That is, we have to understand what we see in light of the narrative motif or particular genre of film. Whatever “lesson” the video imparts, it is one that requires interpretive articulation by someone, and in light of the kinds of considerations I’ve just mentioned. Even if the video was exceedingly clear, the tape itself cannot make the factual point necessary to resolving the case – the Justices have to make the point by articulating salient aspects of the video relevant to an argument they make. The video itself says nothing (and it certainly says nothing about whether Scott was acting reasonably in the circumstances – an interpretive conclusion about which the lower court judges and Justice Stevens hear the video saying something very different from the majority).

If a “clear text” in the form of a police video can tell lots of stories on its own, can we imagine a court simply appending a videotaped confession to an opinion that summarily rejects a claim of police coercion with the claim that the video speaks for itself? With the rising use of video during interrogation, the temptation might become to likewise claim that the video speaks for itself. The same problems of framing will exist in this context too (e.g., what happened before the video began, what is happening off screen, how does the position of the video affect the way the scene is viewed, etc.), as well as the same problems of there being different ways of seeing what is on the video as in Harris. Having used this unusual ploy once, the temptation will likely exist to use it again.

Posted by: Tommy Crocker | Nov 5, 2007 9:38:47 PM

I had no idea what this post meant, until John Muckelbauer interpreted it for me. Now I need somebody to explain what John Muckelbauer and the other commenters are talking about.

Posted by: AF | Nov 5, 2007 8:43:21 PM

I think the difficulty is the overstatement inherent in the claim "that texts don't 'tell stories' on their own, but that they require exegesis and interpretation." A clear text tells lots of stories on its own, at least if we understand "telling a story" as imparting a lesson that pretty much everyone will see and accept. There may be some ambiguities, of course, but there are always really clear cases as well. The videotape in Scott v. Harris is a good example. Harris made rather absurd claims about the facts of the case, and the videotape plainly contradicted his telling. The "text" was so clear that the Justices could just go to the tape and the tape could make the factual point the Justices needed to resolve the case.

(Full disclosure: I was co-counsel for Scott in the case.)

Posted by: Orin Kerr | Nov 5, 2007 8:20:06 PM

I wanted to respond to a couple of points andy raised above. let me say up front, however, that i'm not a legal scholar, but one of those humanities theory folks that tommy referenced above, so whatever i say should be understood in that light.

first, if i understood the case correctly, the objective of the "text speaks for itself" reasoning was to disallow the possibility that any reasonable person could possibly form an opinion contra Scalia's (and the majority's). In other words, it was not simply a claim that "the meaning of the text is clear" but a much stronger claim: that the evidence is absolutely unequivocal and cannot possibly offer any alternative understanding to any reasonable person. as a crucial result, some aspects of the case did not need to go before a jury (since we would presumably already know what they would say if they were reasonable). hence, it would seem like a real fundamental problem with this reasoning that even 1 supreme court justice offered a dissenting view (wouldn't this effectively mean either that Scalia's opinion was wrong or that Stevens was not reasonable?)

i agree that as a rhetorical strategy, people use the "text speaks for itself" argument all the time (precisely in order to avoid having to actually make an argument, which would introduce the risk of having to engage a different perspective). but it also seems to me that there is a difference between a supreme court decision and a conversational rhetorical strategy.

In other words, to take the example you gave about the redskins v. patriots video, i could easily respond to you by saying "Yes, the redskins got their butts kicked in that game, but some of their key players were injured, and they had an understandable let-down after the difficult game the week before, and their new QB is just starting to learn the offense, etc." Hence, I would be claiming that the video evidence is NOT unequivocal (and maybe that it shows only that the Pats were better than the Redskins ON THAT DAY). You could then point to any number of other sources that would substantiate your position, but you would have to speak FOR (or with) the texts in order to do so (iow, if we were attempting to reach a decision, you would at least be forced to complicate your claim that the video text simply speak for itself). So it seems to me (perhaps wrongly) that a supreme court decision should be involved in a more sophisticated level of decision-making criteria than the rhetorical operations that you and I would use in deciding about the skins and patriots.

Posted by: John Muckelbauer | Nov 5, 2007 8:14:36 PM

I understand what Scalia was doing (and the 7 other members of the Court who joined his opinion!) as the equivalent of including the video in his opinion. If texts don't speak for themselves in some sense, it's hard to see how we could communicate anything at all. I send out a message, and it's up to the text--on its own, as it were--to get you to grasp my meaning. Explaining something is just adding another text, after all.

I very much doubt that, when people say that a text "speaks for itself," they really are saying that a text has some intrinsic meaning that imparts itself upon all who gaze upon it. At a basic level, we are all making extratextual assumptions when we are reading the constitution or statutes (e.g., that they are written in English, that they are not to be read to mean the opposite of what they say, and so on).

when someone says that a text speaks for itself or that it has a plain meaning, what one is saying (i think) is that, in light of widely shared interpretive conventions, the meaning of the text is clear. to attack someone's claim that a text speaks for itself on the grounds that all texts require *some* degree of interpretation is to set up a strawman, in my view. "Not even the most committed textualist would claim that statutory texts are inherently 'plain on their face.'" Manning, 97 COLUM. L. REV. at 696. (Note that I am not saying that you have set up a strawman -- I just thought your point was elaborating on a little further.)

Insofar as you argue that the video isn't as clear as Scalia makes it out to be (I haven't watched it), I think you would have a valid point. But surely there are situations where, given the community's interpretive assumptions, one can validly say that a video "speaks for itself."

For example, suppose I said: "The Patriots are better than the Redskins. Watch the 52-7 thrashing from last week. The video speaks for itself." I think I would be justified in presenting the video as speaking for itself. Only the most nihilistic and out-of-touch academics would argue that that statement is somehow misleading or myopic (to be sure, from my reading of statutory interpretation literature, there definitely are some scholars who would argue that I was misleading, but I think that people with both feet on this planet would accept my argument).